You ask whether certain information is subject to required public disclosure under chapter
552 of the Government Code. Your request was assigned ID# 128451.

The Texas Department of Insurance ("TDI") received a request for "an enclosure of 12 pages
from Haag Engineering" referenced in a December 9, 1998 letter to TDI from Zurich
Insurance Company. TDI advised that the requested information may implicate the
proprietary interests of third parties.(1) Accordingly, this office notified Zurich Insurance
Company, Haag Engineering Company, and CNA Insurance Company about the request for
information. See Gov't Code § 552.305 (permitting interested third party to submit to
attorney general reasons why requested information should not be released); Open Records
Decision No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305
permits governmental body to rely on interested third party to raise and explain applicability
of exception in Open Records Act in certain circumstances). Haag Engineering ("Haag")
responded by claiming that the information at issue is protected under section 552.110 of the
Government Code.

Section 552.110 of the Government Code excepts from required public disclosure

[a] trade secret or commercial or financial information obtained
from a person and privileged or confidential by statute or judicial
decision.

This section protects two categories of information: 1) trade secrets and 2) commercial or
financial information.

A "trade secret"

may consist of any formula, pattern, device or compilation of
information which is used in one's business, and which gives [one] an
opportunity to obtain an advantage over competitors who do not know
or use it. It may be a formula for a chemical compound, a process of
manufacturing, treating or preserving materials, a pattern for a machine
or other device, or a list of customers. It differs from other secret
information in a business in that it is not simply information as to single
or ephemeral events in the conduct of the business, as for example the
amount or other terms of a secret bid for a contract or the salary of
certain employees. . . . A trade secret is a process or device for
continuous use in the operation of the business. Generally it relates to
the production of goods, as for example, a machine or formula for the
production of an article. It may, however, relate to the sale of goods
or to other operations in the business, such as a code for determining
discounts, rebates or other concessions in a price list or catalogue, or
a list of specialized customers, or a method of bookkeeping or other
office management.

There are six factors to be assessed in determining whether information qualifies as a trade
secret:

1) the extent to which the information is known outside of [the
company's] business;

2) the extent to which it is known by employees and others involved
in [the company's] business;

3) the extent of measures taken by [the company] to guard the
secrecy of the information;

4) the value of the information to [the company] and to [its]
competitors;

5) the amount of effort or money expended by [the company] in
developing this information; and

6) the ease or difficulty with which the information could be
properly acquired or duplicated by others.

Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision No. 232
(1979). This office must accept a claim that information is excepted as a trade secret if a
prima facie case for exemption is made and no argument is submitted that rebuts the claim
as a matter of law. Open Records Decision No. 552 (1990). However, where no evidence
of the factors necessary to establish a trade secret claim is made we cannot conclude that
section 552.110 applies. Open Records Decision No. 402 (1983). Having reviewed Haag's
arguments and the information at issue, we conclude that Haag has not made a prima facie
case that the information is protected under the trade secret aspect of section 552.110

In Open Records Decision No. 639 (1996), this office announced that it would
follow the federal courts' interpretation of exemption 4 to the federal Freedom of Information
Act when applying the second prong of section 552.110 for commercial and financial
information. Thus, this office relied on National Parks & Conservation Association v.
Morton, 498 F.2d 765 (D.C. Cir. 1974), as a judicial decision and applied the standard set out
in National Parks to determine whether information is excepted from public disclosure under
the commercial and financial prong of section 552.110. However, the Third Court of Appeals
recently held that National Parks is not a judicial decision within the meaning of section
552.110. Birnbaum v. Alliance of Am. Insurers, 1999 WL 314976 (Tex. App.-Austin May
20, 1999, no pet. h.).(2) Here, because neither TDI nor Haag has cited to a statute or judicial
decision that makes the commercial or financial information privileged or confidential, you
may not withhold the requested information under the commercial or financial information
prong of section 552.110. Therefore, the information must be released.

Please note, however, that part of the requested information indicates on its face that it is
protected by copyright. A custodian of public records must comply with the copyright law
and is not required to furnish copies of records that are copyrighted. Attorney General
Opinion JM-672 (1987). A governmental body, however, must allow inspection of
copyrighted materials unless an exception applies to the information. Again, we have not
found that the material at issue here is subject to an exception. Therefore, if the requestor,
wishes to make copies of the copyrighted materials, he must be permitted to do so, but
without the assistance of TDI. In making copies, the requestor will assume the duty of
compliance with the copyright law and the risk of a copyright infringement suit. See Open
Records Decision No. 550 (1990).

We are resolving this matter with an informal letter ruling rather than with a published open
records decision. This ruling is limited to the particular records at issue under the facts
presented to us in this request and should not be relied upon as a previous determination
regarding any other records. If you have questions about this ruling, please contact our
office.

Sincerely

William Walker
Assistant Attorney General
Open Records Division
WMW/ch

1. Chapter 552 of the Government Code imposes a duty on a governmental body seeking an open records decision pursuant to section 552.301 to submit that request to the attorney general within ten business days after the governmental body's receipt of the request for information. The time limitation found in section 552.301 is an express legislative recognition of the importance of having public information produced in a timely fashion. Hancock v. State Bd. of Ins., 797 S.W.2d 379, 381 (Tex. App.--Austin 1990, no writ). When a request for an open records decision is not made within the time period prescribed by section 552.301, the requested information is presumed to be public. See Gov't Code § 552.302. This presumption of openness can only be overcome by a compelling demonstration that the information should not be made public. See, e.g., Open Records Decision No. 150 (1977) (presumption of openness overcome by a showing that the information is made confidential by another source of law or affects third party interests). Here, although TDI failed to request an attorney general decision within ten business days, it is argued that the information at issue implicates a third party's property interests. Therefore, we will consider those arguments.

2. We note that the portion of section 552.110 which addresses "commercial or financial information" was amended in 1999, effective September 1, 1999. Since TDI's request for the decision of this office was made prior to September 1, 1999, the law in effect at the time of its request governs. See, Act of May 25, 1999, 76th Leg., R.S., S.B.1851, §§ 7,36,37.